Irvine v Advanced Nutrition Ltd.

LORD JUSTICE RIX: This is Mr Andrew Irvine's adjourned application for permission to appeal against the order of His Honour Judge Simpkiss, dated 15 March 2005, whereby Judge Simpkiss dismissed Mr Irvine's appeal to him from the decision of District Judge Taylor, dated 12 November 2004, striking out Mr Irvine's claim in these proceedings pursuant to CPR Part 3.4 as a claim disclosing no reasonable grounds.

By an order of Ward LJ, who heard Mr Irvine without notice on 20 July 2005, this adjourned application was to be followed by an appeal were permission to be given. The application is for a second appeal. As we have made plain to Mr Irvine at the beginning of this hearing and as I think Mr Irvine fully understands, we do not have power to give him permission to appeal unless he can show that he raises an important point of principle or practice or some other compelling reason why an appeal should be heard.

The importance of those gateways have been stressed in a recent decision of this court, where it was said that a second appeal can on those grounds be sanctioned only in exceptional cases. The attitude I take on this application is that if I was concerned that there was a real danger of any injustice being caused to Mr Irvine arising out of these proceedings, then I would regard that as a compelling reason for an appeal if there was some real prospect of success on an appeal. Subject to that, the narrowness of the gateways has to be fully observed by this court.

The background of this application is that between 1993 and 1996 Mr Irvine was a patient of a Miss Amanda Reuter, who worked at premises which Mr Irvine describes as a clinic, which was administered to a greater or lesser extent as a clinic either by a company called Medabolics Limited or, the respondent to this application, an associate company called Advanced Nutrition Limited.

In September 1996 Mr Irvine ceased having treatment with Miss Reuter. It may well be that he by then or at a subsequent time also had treatment from another person working at the clinic, namely Dr Robert Erdmann.

On 24 March 1999 Mr Irvine issued proceedings against Miss Reuter and Medabolics for negligence and misrepresentation. In essence, he was complaining about negligent treatment. As a result of the issue of those proceedings disclosure was made of Mr Irvine's files by Medabolics (who kept those files on behalf of Miss Reuter and Dr Erdmann) to both their own solicitors and to Miss Reuter's solicitors. Mr Irvine found out about this disclosure on 1 February 2001 when he visited the clinic's offices then being administered by the respondent to these proceedings, Advanced Nutrition. Mr Irvine alleges - and this is the basis of his claim in the current proceedings - that as a result of his learning of the disclosure of his file to Miss Reuter's and Medabolic's solicitors on 1 February 2001, he suffered a pain, in particular in his right elbow, which has caused him loss and damage. Mr Irvine puts his claim in terms of breach of confidence and breach of copyright as well as in negligence. But the essence of his claim is a claim for personal injures arising out of his reaction to learning of the disclosure of his file to those two firms of solicitors.

When Mr Irvine made that discovery on 1 February 2001, the original proceedings which had given rise to that disclosure had receded into the background because already by about September 1999 or thereabouts his claims against both Miss Reuter and Medabolics had been dismissed or permanently stayed. My understanding is that on 21 September 1999 the court ordered that the claim against Miss Reuter be struck out unless a medical report was provided within 56 days to support his statement of claim, and that the claim be stayed in the meantime. My understanding is that no medical report was provided and the action was struck out and, so far as the claim against Medabolics was concerned, there was a consent order on 30 September 1999 whereby the proceedings were dismissed by consent, accompanied by an undertaking that no further action against Medabolics be taken. All that, as I say, was the background to the present claim which arises out of the incident on 1 February 2001.

Just within the time limit, so far as concerns an action for personal injuries, of three years expired Mr Irvine brought these proceedings in the Horsham County Court against Advanced Nutrition on 30 January 2004 for the claims which I have already indicated. His original claim form expressed his claim in the most outline of forms but on 20 September 2004 District Judge Pollard ordered Mr Irvine to provide properly particularised particulars of claim pursuant to CPR 16.4 by 4 October 2004. So it was that, pursuant to that order, Mr Irvine did file and serve particulars of claim which explain the incident of 1 February 2001, accompanied by a schedule of general damages, a schedule of special damages, particulars of injuries and a medical report from a Dr Paul Vinson, dated 29 September 2004.

In that report Dr Vinson confirms that Mr Irvine had consulted one of his colleagues on 26 January 2001, that is - I emphasise - some five days before the critical incident of 1 February 2001 which has led to these proceedings. Dr Vinson's report explains that, on 26 January 2001, Mr Irvine attended at the surgery complaining of a painful right elbow which he said he had been suffering for a week or so prior to 26 January. He was advised to use some anti-inflammatories for a week and to come back if things were no better. It was Dr Vinson himself who saw Mr Irvine on his return to the surgery on 16 February 2001. A diagnosis of tennis elbow was confirmed on that occasion by Dr Vinson himself and therapeutic options, including a steroid injection, were discussed. However, Mr Irvine was not keen for that to take place, saying he was in contact with an acupuncturist; and he was not seen again until the following month, March, 2001, when he was complaining of general aches and pains in his joints, including his knees and ankles, and it was also noted that he had developed a reaction to some anti-inflammatory cream that he been provided on 16 February. Routine blood tests were taken, but showed no active inflamation. He was seen next on 21 June 2001 when he was prescribed further anti-inflammatory topical treatment. There were no further consultations until February 2004 when Dr Vinson saw Mr Irvine again, but no treatment was prescribed on that occasion. Finally, Dr Vinson's report notes that when he had been seen back in March 2001 he had recently been under a lot of stress "due to a court case and this concludes my report which is based on a review of his GP reports from 2001."

The only other reference to Mr Irvine's injury was in the document headed "Particulars of Claim" itself which concluded with this passage:

As for particulars of injuries, Mr Irvine alleged as follows:

Following the serving of those particulars, a defence was served but it was also made plain by Advanced Nutrition that they wished to attack Mr Irvine's claim summarily by seeking to strike it out as disclosing no reasonable grounds of claim.

There was a hearing on that application for which seven days' notice was given, on 5 November 2004 at the Horsham County Court before District Judge Taylor. As a result of that hearing the district judge struck out the claim on the basis that the particulars which had been ordered to be served disclosed no reasonable grounds for bringing the claim, and an appeal was refused.

Mr Irvine then submitted a notice of appeal which, although initially refused on the papers by Judge Simpkiss, came before that judge on a renewed oral application without notice on 31 January 2005 and on that occasion Judge Simpkiss did give to Mr Irvine permission to appeal. Notice of that permission was given to Advanced Nutrition but they were at that stage uncertain as to the basis upon which the judge had given permission. They had, of course, Mr Irvine's notice of appeal filed 26 November 2004.

As a result of Advanced Nutrition's counsel Mr Sinnatt making the inquiry at the court at to the matters in contention, the parties were sent a letter from the court on 24 February 2005, which stated as follows:

Although that letter unhappily as it came to be typed is worded as I have cited it, it seems to me reasonably plain, that the sentence which reads "I also waived the arguments on causational foreseeability of the loss claimed to be developed", was intended to read and is properly to be understood to read "I also wanted the arguments on causation and foreseeability of the loss claimed to be developed". That, it seems to me, is apparent not only from the arguments which had been developed before the district judge pursuant to Mr Irvine's notice of appeal, but is also apparent from the construction of the letter as a whole. It begins by emphasising what the judge asked for or wanted and then went on to state what he said he did not need. The structure of the letter, in effect, was the judge was quite satisfied and needed no assistance from Advanced Nutrition that defendants were entitled to pass to their solicitors documents in the file relating to the medical treatment which it was being claimed against them was negligent, but he was concerned inasmuch as the file passed to the solicitors also contained documents not relevant to the medical treatment about which Mr Irvine as claimant was complaining, but to different medical treatment from a different doctor, viz, Dr Erdmann, who treated Mr Irvine after he had ceased to be treated by Miss Reuter. That is why the letter is expressed in the terms in which it is expressed.

Of course if, despite being interested in that subject matter the judge was not interested in the subject of causation or foreseeability, it would be very difficult to understand at all how it was that the judge had given permission to appeal, which is another reason why, in my judgment, the letter must have been read by those who received it ultimately in the way in which I have suggested. Mr Sinnatt has explained to us today that although he was a bit puzzled by the actual terms of the letter, it did not in fact deter him from covering the question of causation and foreseeability in the skeleton which was dated that same day, 24 February 2005, and served at that time upon Mr Irvine well in advance of the hearing.

Mr Irvine tells us this morning that he read that letter to mean that the judge was not interested in causation and foreseeability and that he, Mr Irvine, therefore did not need to address the court on that basis. He tells us that he therefore stopped his researches into matters of causation and foreseeability. Nevertheless, the fact remains that, as Judge Simpkiss was to remark in his judgment, he received two skeleton arguments from Mr Irvine and was addressed by him orally on those subjects, both of course at the "without notice" hearing at which he had given permission to appeal and also at the hearing of the appeal which took place on 15 March 2005.

In my judgment, Mr Irvine was able, through his written and oral submissions, to put before the judge at those two hearings any points on causation and foreseeability which he wanted to and which indeed are referred to in the transcript of Judge Simpkiss' judgment at pages 9 and 10.

That is all by way of background to this application. What are the grounds of appeal upon which Mr Irvine seeks permission? They have varied over the course of time, starting with his notice of appeal. Today, the main points which Mr Irvine has sought to make are first and foremost the point that he was put off the scent of dealing with the matters of causation and foreseeability by the letter of 24 February 2005 to which we have referred; secondly, that the judge was wrong to apply to his case any law relating to a defendant's disclosure to his own solicitors; thirdly, going back to the hearing before District Judge Taylor, that he was taken by surprise that there was to be any application for a striking out of his claim on that occasion, and that he was unfairly treated by being served with skeleton arguments or authorities or submissions only the night before that hearing or to some further extent at the hearing itself. He has also taken two other points more briefly this morning. One was that the judge was wrong in his judgment to rely, on the subject matter of foreseeability, on the case of McLoughlin v Jones [2001] EWCA; [2002] QB 1312; and finally that his medical files brought into court at that hearing must have been falsified inasmuch as Advanced Nutrition's counsel told the judge, after referring to the files, that there were no documents within them relating to Mr Irvine's treatment by Dr Erdmann for psychological or psychiatric reasons, a matter on which he wanted to rely for the purposes of the argument on foreseeability of his suffering a psychiatric or neurological injury or what can plainly be called a reaction by shock.

Let me deal with those arguments which have been stressed today by Mr Irvine. First of all I can put on one side entirely the matter of foreseeability. I will deal with this application on the basis that on the issue of foreseeability, if one got that far, Mr Irvine's claim did not deserve to be struck out. So far as disclosure to someone else's solicitors is concerned, that is not a relevant point because before Judge Simpkiss, as again before us today, Advanced Nutrition were prepared to accept, for the purpose of these interlocutory summary proceedings, that there had been a wrong in the medical records being disclosed without Mr Irvine's consent. The question, therefore, comes down to matters of proper particularisation and causation.

In his judgment, Judge Simpkiss dismissed Mr Irvine's appeal essentially on four main grounds. His first was that there was no pleaded case of injury as a result of a psychiatric, as distinct from a physical, effect. So far as that ground is concerned, I am prepared to deal with this application on the basis that the informally pleaded particulars of Mr Irvine, who is of course a litigant in person, sufficiently raises a case of physical or psychiatric injury caused by his shock of discovering the way in which his records had been dealt with that day on 1 February 2001. The judge's second point was that there was no medical evidence of any psychiatric, or indeed of any other, injury being caused. His third point was that there was in any event no evidence of causation of any injury being caused by the events of 1 February 2001, and his fourth point was that there was no foreseeability. As I have already made clear, I will leave on one side the fourth point of foreseeability. Therefore it is necessary to consider whether, on the subject of properly particularised particulars of claims in relation to medical evidence on the subject of causation, Mr Irvine's submissions today have raised an important point of principle or practice or some other compelling reason why he should get permission to appeal.

I have to say that in my judgment he has failed to do so. Inasmuch as Mr Irvine relies upon a comment of Dr Aziz in March 2001, there is no medical evidence which accompanies the particulars of claim. The judge referred to the remark relied upon, namely "certainly it's the body's response to a stressful event", as being a throwaway remark. So I would regard it. But in any event there is no medical evidence from Dr Aziz. Nor does the medical report of Dr Vinson provide any support at all for any injury, whether it is to be called psychiatric, psychological, neurological or physical as having been caused by anything that happened on 1 February. On the contrary, the report is a clear account of how some week or more before 26 January 2001 Mr Irvine started to suffer from a painful right elbow which caused him to go to his GP's surgery on 26 January and again on 16 February. Indeed, on 15 February he declined medical treatment. It seems to me that the judge was quite right to say that the particulars of claim did not support reasonable grounds for bringing the claim or any reasonable case based in causation. Nothing in the medical report ascribes anything that Mr Irvine suffered to the events of 1 February but, on the contrary, ascribes them to suffering tennis elbow beginning some weeks before 1 February. Therefore, even if this had been a first appeal it would have been my opinion that there was no reasonable prospect of success on appeal which would entitle this court to give permission to appeal. As it is, this is a second appeal. The gateways are much narrower, in addition an important point of principle or practice or some other compelling reason has to be found, and none has been shown.

In concluding this judgment, I would observe that while Mr Irvine's original notice of appeal does not include a ground relating to Mr Irvine being put off the scent of what issues would be before the judge at the appeal before Judge Simpkiss, some other grounds do appear which however have not been pursued today by Mr Irvine, nor have they even been pursued in his second skeleton argument which highlights the main points that he wishes to raise. I can also say briefly that there is nothing in the original grounds of appeal, nor in Mr Irvine's original skeleton argument which accompanied those grounds, nor in Mr Irvine's subsequent skeleton argument served just a few days ago, which gives me any concern that he has been dealt with by any procedural irregularity or unfairness or by any error in law. It seems to me that Mr Irvine had seven days' notice of the original hearing before District Judge Taylor. In any event, he had a completely new hearing before Judge Simpkiss. Inasmuch as Mr Irvine complains about that hearing, it seems to me plain that both through his skeleton arguments and from his oral submissions before the judge on the hearing without notice and at the hearing of the appeal itself, Mr Irvine had a wholly fair and adequate opportunity to address the court.

For all these reasons I am obliged to refuse permission to appeal.

LORD JUSTICE GAGE: I agree.